Free Speech in the Courts: The Significant Legal Outcomes of 2016

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Sedition, defamation, censorship, internet shutdowns – the year saw the courts being tested on a range of issues related to freedom of expression.

Supreme Court. Credit: Shome Basu

2016 saw the courts being tested on a range of issues concerning the freedom of expression. It was a year in which cases of sedition and defamation and of censorship of films and other arts reached record numbers. Significant orders and rulings in the Supreme Court (SC) and high courts spanned the gamut of conflicts, including those between state and media, state and artist, the state-appointed censor board and filmmakers, the legislature and media, state and political opposition and the conflict between societal censure and free expression – a citizen’s right to free speech versus another’s right to take offence. A number of challenges also opened up on the digital front, with mobile internet bans being imposed under Section 144 of the Code of Criminal Procedure (CrPC).

Perhaps this year’s most significant rulings were those centred on upholding the validity of criminal defamation, those that deal with defamation and sedition and the question of whether strong criticism amounted to either of these offences.

What qualifies as criminal defamation

In May – giving its verdict on a batch of petitions including the ones by Congress vice-president Rahul Gandhi, Delhi chief minister Arvind Kejriwal and BJP leader Subramanian Swamy – the Supreme Court upheld the validity of the criminal defamation law. The court’s verdict challenged the constitutional validity of sections 499 and 500 of the Indian Penal Code (IPC) which deal with criminal defamation.

The law has no chilling effect on free speech, the apex court said. “Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the Constitution”. There was dismay over a ruling which seemed to nullify efforts to decriminalise defamation.

A few months down the line, in August, however, the SC clarified that criticism did not constitute defamation. The year which saw the demise of J. Jayalalithaa, Tamil Nadu’s chief minister, also saw the Supreme Court pull her up earlier in the year for using defamation as a political tool. It quashed a non-bailable warrant issued against DMDK chief Vijayakanth and said that criminal defamation proceedings cannot be initiated for merely critiquing the government.

The apex court expressed concern over the defamation law being misused and the office of the public prosecutor in Tamil Nadu being used as a “post office” for initiating politically motivated cases against opponents. It said during the hearing that calling a government corrupt or unfit cannot be grounds for launching a defamation prosecution. Notably, in 2016, the AIDMK government also filed 16 cases of defamation against the media in just the first three months of the year.

Sedition

In January and October judges from two high courts, Delhi and Chhattisgarh respectively grappled with the issue of why young people were inclined to allegedly seditious thoughts. The Delhi judge examining Kanhaiya Kumar’s application for bail in the JNU sedition case wondered aloud, “why the colour of peace is eluding the prestigious Jawaharlal Nehru University”.

While granting Kumar interim bail for six months the court noted that being of the “intellectual class” Kumar could have any political or ideological affiliation and had the right to pursue the same within the framework of the constitution. To afford more time to introspect on the events that had culminated in the arrest of Kumar and provide an “antibiotic” to cure the “infection”, the court was inclined to grant him an opportunity to return to the mainstream, added the court.

Six months down the line in Bilaspur, a Chhattisgarh high court judge considered the bail application of a Kashmiri youth residing in Chhattisgarh who had liked a Facebook post which showed a cartoon of India being swept by a broom. This judge took a more judgmental view than the Delhi court, noting that while the case diary did not suggest that any disorder or disturbance of public place took place, “The argument that the applicant had only liked the face book wall and has a right of freedom of expression cannot be appreciated. It cannot be ignored that the applicant is able to study and live a life of freedom in this country only…” This judge too granted bail but urged introspection.

2016 was a popular year for sedition charges with a large number of cases being filed under the category – 18 just between January and June. In a case hearing on September 6, the SC clarified that sedition or defamation cases could not be slapped on anyone criticising the government. It said, “Someone making a statement to criticise the government does not invoke an offence under sedition or defamation law. We have made it clear that invoking of section 124(A) of IPC (sedition) requires certain guidelines to be followed as per the earlier judgement of the apex court,” the bench, comprising Justices Dipak Misra and U. Lalit, said while hearing a petition by Common Cause on the misuse of the sedition law.

However, the Supreme Court declined to pass a direction on the Common Cause plea that a copy of this order be sent to all chief secretaries of states and the directors general of police. “You have to file a separate plea highlighting if any misuse of sedition law is there. In criminal jurisprudence, allegations and cognisance have to be case specific, otherwise, it will go haywire. There can’t be any generalisation,” the bench said.

2016 saw three bans imposed on TV channels over the course of the year by the Ministry of Information and Broadcasting, for durations varying from one week to one day. NDTV India was ordered to go off air for a day for having revealed “strategically-sensitive” details while covering the Pathankot terrorist attack, the one day ban quickly became a cause celebre. The channel moved the Supreme Court against the ban but the court deferred hearing the case. Care World TV, a health channel upon which a seven-day ban was imposed, went to court as well and obtained a heartening order. The Bombay high court said the order was completely illegal and a breach of the elementary principles of natural justice. It also observed that the larger issue of the central government’s power to impose such a ban would have to be examined.

Given that there have been 32 bans imposed by the ministry over the last 12 years, this year may have seen the beginning of a significant push back.

Legislature and the media

In August 2015 an enquiry committee set up by the Uttar Pradesh (UP) legislative assembly held the staff of two TV channels of the TV Today group guilty of breaching Azam Khan’s privilege, the parliamentary affairs minister in the Samajwadi Party (Sp) government in the state and an MLA from Rampur constituency.

In March this year the Supreme Court stayed the proceedings initiated by the UP legislative assembly.

This committee had been set up by the Sadan on September 17, 2013, to examine allegations aired against Khan in a sting operation telecast on Aaj Tak and Headlines Today in relation to the Muzaffarnagar riots. It held 48 meetings, it said in its report, examining the evidence and listening to the channel representatives, before it concluded that there had been a breach of privilege.

Senior advocate Soli Sorabjee had filed a Special Leave Petition in the SC under Article 32 of the constitution. Appearing for the TV Today network’s channels — Aaj Tak and Headlines Today (now India Today) — he submitted that the UP assembly had no locus standi to direct journalists to appear before it for having conducted the sting operation since it pertained to a matter outside the assembly and did not in any way impede the functioning of the house or any of its members.

“The proceedings against petitioners by the UP Legislative Assembly shall remain stayed,” a Bench of justices J. S. Khehar and C. Nagappan said and asked the UP government and its legislative assembly to file their response within four weeks on the petition submitted by the channel and its staffers. The bench said it was passing this order to give UP’s additional advocate general more time, which he had sought to file a counter affidavit, so as to enable him to create the complete picture of the controversy on the record of this case.

The case has not been heard by the apex court again, but it constitutes a significant test case on whether the media’s exposing of a legislator’s actions outside the assembly can warrant a charge of breach of privilege. The detailed report of the enquiry committee does point out though that the legislator had not been given a chance to respond to the expose before it was telecast.

Triumphing over community censorship

In July 2016 came a judgement from the Madras high court which was hailed for striking a much-needed blow against community censorship of the arts. In 2015 Tamil writer Perumal Murugan had announced his death as a writer after the eruption of orchestrated protests demanding a ban on his novel Mathorubhagan (One Part Woman)in his hometown of Tiruchengode in Tamil Nadu. He had been forced to tender an apology at a local peace committee meeting.

The Hindu said in an editorial, “The 160-page judgment by a Division Bench headed by Chief Justice Sanjay Kishan Kaul builds on a series of progressive rulings. It has applied the contemporary community standards test in concluding that there is nothing obscene in the novel.” It however demurred later in its editorial that the suggestion of the bench that the state should set up a body of experts to resolve conflicts such as these could itself represent a compromise.

After the judgement, the writer said in a statement that it had given him much happiness. “It comforts a heart that had shrunk itself and wilted. I am trying to prop up myself holding on to the light of the last lines of the judgment, “Let the author be resurrected to what he is best at. Write.”

The following month, in August, there was a victory in a similar case for a Mumbai writer charged with obscenity in 2005 for a novel published in 1994. In this case, there was no judgement, the charge was simply withdrawn 11 years after being filed. The Hindu reported that a 19-year-old student at the Urdu department of Mumbai University had registered a complaint at the Jogeshwari police station stating that she found two paragraphs in Abbas’ 1994 novel, Nakhlistan ki Talash (The Search of an Oasis), “objectionable” and “obscene”. The allegations cost him his job as a teacher at the Anjuman-e-Islam’s English High School and Allana Junior College. The complainant retracted her statement this year and said she had misunderstood the writing.

Upholding cinematic freedom of expression

In a year which saw practically weekly tussles between filmmakers and the Central Board of Film Certification(CBFC), there were at least two court judgments which upheld the creative freedom of filmmakers; while expressing diametrically opposite views on the judgment of the Central Board of Film Certification!

In April the Bombay high court on Thursday declined to grant a stay on the release of a Bengali film called Dark Chocolate, based on the Sheena Bora murder case. Peter Mukherjea, the co-accused in the case, and his sister had filed a petition seeking a stay on the grounds that the film was defamatory. While rejecting the plea, a division bench of the high court said that it had faith in the
Central Board of Film Certification which must have analysed the film before approving it for release.

In June the Bombay high court upheld only one of 94 cuts ordered in the film Udta Punjab, saying that the CBFC did not have the power to censor films. While the CBFC merely cited guidelines and offered no reasoning for the cuts it was demanding, the court did not actually question the lack of a reasoned order by the board. Instead, the judgement focused on defending the scenes that the board chose for deletion.

Digital challenges

Finally, the courts grappled with internet bans and offences arising out of social media.

The year saw the Supreme Court rule on the legality of internet shutdowns under Section 144 CrPC. In February the apex court ruled that mobile internet can be banned under this section, dismissed an appeal challenging a judgment of the Gujarat high court which had upheld the ban on mobile internet under Section 144 of Code of Criminal Procedure. Dismissing the argument that there was a provision for such bans under the Telegraph Act, one of the judged remarked that using this section “becomes very necessary sometimes for law and order. There can be concurrent powers” before dismissing the petition.

The Delhi and Madras high courts dealt with cases involving the uploading of morphed pictures on social media, the sharing of WhatsApp data with Facebook and the posting of defamatory videos on Youtube. In October, the Madras high court directed YouTube and Google to disclose details of a user who posted a video that a private company termed ‘defamatory’.

And in the same month, the Delhi high court restrained social websites, including Facebook India, Google, YouTube and Twitter India, from publishing or showing any derogatory photographs of expelled AIADMK member of parliament (MP) Sasikala Pushpa. The order by Justice R. K. Gauba came after Pushpa alleged that unknown persons had threatened to upload morphed photos of her on various sites.

Sports feed: advantage public broadcaster

In a ruling with significant commercial implications, the Supreme Court held in May this year that when private sector sports broadcasters shared their feed with the public broadcaster, the signal provided had to be stripped of advertisements if the revenue from those advertisements were not being shared with Prasar Bharati, “The sharing of the signals has to be without any advertisements and if the advertisements are to be included in the signals, the revenue has to be shared equally.”

The court said that the law which mandated the sharing – Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act – said it should be the best feed possible. Star India Ltd. had filed an appeal against sharing ad-free feed with Prasar Bharati. The broadcaster had argued that the feed it received from the organisers would necessarily include advertisements, logos and other on-screen credits presented during the game.

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